Imbrie v. Marsh

• Decision Date: 19 October 1949
• Docket Number: No. A 9.,A 9.
• Citation: 68 A.2d 761
• Parties: IMBRIE et al. v. MARSH et al.
• Court: New Jersey Superior Court

68 A.2d 761

IMBRIE et al.

v.MARSH et al.

No. A 9.

Superior Court of New JerseyAppellate Division.

Argued Oct. 5, 1949.

Decided Oct. 19, 1949.

Proceeding by James Imbrie and others against Lloyd B. Marsh and others to determine the validity of certain statutes.

The trial court rendered a judgment for defendants, and plaintiffs appealed.

The Superior Court, Appellate Division, Bigelow, J.A.D., reversed the judgment and held that the statutes requiring a denial of belief in violence or unconstitutional means to overthrow the state or federal governments and a disavowal of membership in groups advocating such means were invalid in so far as they related to the Governor, Senators, members of the General Assembly and candidates for those offices.

Before Judges JACOBS, DONGES and BIGELOW.

Leo Blumberg, Newark, argued the cause for the plaintiffs-appellants (William Rossmoore, Newark, and Basil Pollitt, New York City, on the brief; Morton Stavis, Newark, attorney).

Benjamin C. Van Tine, Trenton, argued the cause for defendants-respondents (Henry F. Schenck, Flemington, of counsel).

Theodore D. Parsons, Attorney General, attorney for State of New Jersey.

Jerome C. Eisenberg, Newark, attorney for American Jewish Congress, New Jersey Region.

Rothbard, Harris & Oxfeld, Newark, attorneys for American Civil Liberties Union.

Solomon Golat, Newark, attorney for Civil Rights Congress of New Jersey.

The opinion of the court was delivered by

BIGELOW, J.A.D.

This appeal brings into question Chapters 21 to 25 of the Laws of 1949. These statutes add to the oath of allegiance found in R.S. 41:1-1, N.J.S.A., and to the oath pledging support to the constitution, R.S. 41:1-3, N.J.S.A., the following terms: ‘That I do not believe in, advocate or advise the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in the Government established in the United States or in this State; and that I am not a member of or affiliated with any organization, association, party, group or combination of persons, which approves, advocates, advises or practices the use of force, or violence, or other unlawful or unconstitutional means, to overthrow or make any change in either of the Governments so established; and that I am not bound by any allegiance to any foreign prince, potentate, state or sovereignty whatever.’ Sundry classes of persons are required so to swear, and among others, candidates for nomination or for election to the legislature or to the office of governor must do so. Persons elected to those offices likewise must take the oath before entering upon the execution of their duties. The appellants, who are candidates for the assembly or for the governorship, urge that the legislature has exceeded its constitutional power in these enactments so far as they relate to the offices to which appellants aspire.

The appellants first rely upon the rule or principle that where the constitution fixes the qualifications for public office, the legislature may not change them or add new qualifications. A century ago, Justice Story wrote: ‘It would seem but fair reasoning upon the plainest principles of interpretation, that when the Constitution established certain qualifications as necessary for office, it meant to exclude all others as prerequisites. From the very nature of such a provision the affirmation of these qualifications would seem to imply a negative of all others * * *. A power to add new qualifications is certainly equivalent to the power to vary them.’ 1 Story, Commentaries on the Constitution, Section 625. An excellent exposition of this rule of constitutional law may be found in People v. McCormick, 1913, 261 Ill. 413, 103 N.E. 1053, Ann.Cas.1915A, 338, a case in which a statute requiring, as a qualification for office, five years' residence where the constitution called for only one was overthrown. Upon the same principle, our own Supreme Court struck down a statute disqualifying for public office one convicted of an offense against the election laws. State v. Carrigan, 82 N.J.L. 225, 82 A. 524 (1912). See also Allison v. Blake, 57 N.J.L. 6, 29 A. 417, 25 L.R.A. 480 (S.C.1894). The respondents do not question the general principle on which the appellants rely. They concede, for instance, that the legislature could not validly enact that a person must be 35 years old to qualify as governor, instead of 30 years, the age stated in the constitution. But they contend that the statutes under review do not add to the qualifications for office, and in support of their argument, they point to the fact that throughout our history, the Legislature has required certain oaths in addition to the oaths prescribed by our constitution.

In Colonial times, public officers were required to take the oath of allegiance to the British Crown, and the oaths devised by Parliament as a safeguard against the Stuart pretenders and for excluding Roman Catholicism. See Cornbury's Commission and Instructions, Leaming and Spicer, p. 648, etc.; also Allinson's Statutes, p. 62. Promptly after the Continental Congress declared our independence, the New Jersey legislature repealed the Colonial statutes on the subject and instead prescribed a simple oath ‘that I do and will bear true faith and allegiance to the government established in this State under the authority of the people.’ Wilson's Laws, p. 1, and Paterson, p. 376. The oath in the form adopted in 1776 has remained unchanged and so appeared in R.S. 41:1-1, N.J.S.A., until the legislature adopted the statutes which are now under attack. Not only the form of oath but the requirement that the governor, as well as members of the legislature, take the oath, has been retained since the time of the Revolution. Paterson, p. 376, R.S. 41:1-2, N.J.S.A.

The origin of the oath of allegiance must be sought in remote feudal times. For long centuries, it was a pledge of fealty to the King, but now in our country it is often an expression of devotion to the government. Such an oath is no more than a brief express engagement of that which every citizen impliedly owes to his country. ‘By allegiance is meant the obligation of fidelity and obedience which the individual owes to the government under which he lives or to his sovereign in return for the protection he receives.’ Carlisle v. U.S., 16 Wall. 147, 21 L.Ed. 426. The oath of allegiance ‘does not increase the civil obligation to loyalty; it only strengthens the social tie by uniting it with that of religion.’ 1 Blacks, Com. 369. The statutory exaction of the oath of allegiance does not exclude from office any whom the constitution of New Jersey accepts; for all owe allegiance; it neither adds to nor varies the qualifications for office.

In 1920, the legislature adopted a statute containing a second oath to be taken by every person thereafter elected or appointed to public office. P.L.1920, p. 413, now found in R.S. 41:1-3, N.J.S.A. In substance, it is the same oath prescribed by the 1844 constitution for members of the legislature, to support the constitution of the United States and of the State of New Jersey, and to perform faithfully the duties of their office. The Federal constitution, Art. VI, directs that all executive and judicial officers of the states and members of the state legislatures ‘be bound by Oath * * * to support this constitution.’ What was new in the 1920 oath was the pledge by others than members of the legislature to support the constitution of New Jersey and faithfully to perform the duties of office. We would find difficulty in exactly defining the obligation assumed by taking an oath to support the constitution of the state, or of the nation, and we find it unnecessary to make the attempt. Probably the oath no more than states in another form the allegiance to the government that we have been discussing. If it goes farther, it is promissory, relating to the future and not to the past, not even the immediate past. It governs only the actions-and here we include words as acts-and not the secret beliefs or hopes, or attachments of the one who is entering into office. Anyone, whatever his beliefs, may take the oath with clear conscience, provided he is willing, by obedience and by word and deed, to maintain the constitution.

In addition to the oaths intended for the security of the State above mentioned, we have always had oaths of office, intended to charge the conscience of the office holder with the due performance of the...